FILED MAR 7 2023 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: BAP No. AZ-22-1140-LSF DARIN A. MACK and DEBORAH L. MACK, Bk. No. 2:18-bk-09604-BKM Debtors. Adv. No. 2:18-ap-00454-BKM EL DORADO LIQUIDATION ASSOCIATES, LLC, successor by assignment to Carter Unruh and Julie Unruh, Appellant, v. MEMORANDUM∗ DARIN A. MACK; DEBORAH L. MACK, Appellees.

Appeal from the United States Bankruptcy Court for the District of Arizona Brenda K. Martin, Bankruptcy Judge, Presiding

Before: LAFFERTY, SPRAKER, and FARIS, Bankruptcy Judges.

INTRODUCTION

El Dorado Liquidation Associates, LLC (“El Dorado”) sought a

declaration that its claim against Debtors was nondischargeable based on

∗ This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential value, see 9th Cir. BAP Rule 8024-1. 1 embezzlement under § 523(a)(4).1 The bankruptcy court dismissed the

complaint for failure to state a claim upon which relief may be granted

under Civil Rule 12(b)(6) (applicable via Rule 7012). We AFFIRM.

FACTS

A. Pre-Petition Events

Carter and Julie Unruh made two loans totaling $140,000 to a retail

archery business, Absolute Archery LLC (“Archery”), in 2013 and 2014.

Archery provided a lien on its inventory as collateral, and Debtors,

Archery’s owners, personally guaranteed these obligations. The notes

provided that Archery would be in default if any disposition of inventory

resulted in a total inventory value of less than $150,000.

Archery provided to the Unruhs monthly financial statements that

indicated it was maintaining the agreed amount of inventory, but it

stopped doing so after December 2015. The December 2015 financial

statements indicated that Archery had $205,687 of inventory on hand.

Archery ceased its business operations around March 2016. Debtors offered

Archery’s inventory as partial payment on the notes and proposed a

coordinated settlement plan for repayment of the remainder of the debt

owed to the Unruhs. In these conversations, Debtors allegedly represented

that the remaining inventory had a cost value of $97,509, based on figures

1Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101–1532, “Rule” references are to the Federal Rules of Bankruptcy Procedure, and “Civil Rule” references are to the Federal Rules of Civil Procedure. 2 from Archery’s point of sale perpetual inventory system. The Unruhs

accepted the turnover of collateral but later determined that it had a cost

value of only $60,932.44.

The Unruhs then demanded payment in full of the notes’ balances

and asserted fraud based, at least partially, on the approximately $35,000

discrepancy in the cost value of the surrendered inventory. Their demand

letter requested $123,400 for money due on contract and other theories.

They filed a complaint against Debtors and Archery in the El Dorado,

California Superior Court, asserting several claims, including breach of

contract, fraud, money had and received, conversion, unfair business

practices, and negligent misrepresentation. The state court entered a

default judgment against Debtors and Archery for $150,616.30. The default

judgment included no findings and made no attempt to specify which

causes of action formed the basis for the award of damages, attorneys’ fees,

and interest.

B. Bankruptcy Events

Debtors filed their chapter 7 case in August 2018. The Unruhs filed an

adversary complaint to except the default judgment from discharge under

§ 523(a)(2)(A) and (B) and promptly moved for summary judgment based

on its alleged issue preclusive effect. The bankruptcy court granted

summary judgment for the Unruhs. Debtors appealed that ruling, and this

Panel reversed and remanded because the state court record was

insufficient to warrant issue preclusion. Specifically, the Panel held that the

3 “actually litigated” and “necessarily decided” elements were not met, and

the bankruptcy court had not analyzed the public policy prong of the issue

preclusion analysis. Mack v. Unruh (In re Mack), BAP No. AZ-20-1034-TLB,

(9th Cir. BAP Jul. 29, 2020).

On remand, the bankruptcy court granted in part the Unruhs’ motion

to amend their complaint. The amended complaint named El Dorado as

plaintiff pursuant to the Unruhs’ assignment of the state court judgment. It

alleged claims under § 523(a)(2)(A), (a)(2)(B), and (a)(4). The Unruhs also

sought to add a claim under § 523(a)(6). The bankruptcy court denied the

addition of that claim on the ground that it was untimely because it did not

relate back to the original complaint. El Dorado does not challenge that

ruling in this appeal. The amended complaint alleged that Debtors

executed the notes and personal guarantees with the intent to deceive the

Unruhs by representing that they would maintain a minimum inventory of

$150,000 and that the Debtors embezzled approximately $88,439 in

mortgaged inventory.

Debtors moved to dismiss the § 523(a)(4) embezzlement claim,

arguing that the Unruhs/El Dorado lacked standing to assert such a claim

because the allegedly embezzled property was owned by Archery. The

bankruptcy court granted the motion without leave to amend.2

2 Although Debtors did not cite Civil Rule 12(b)(6) in their motion to dismiss, the bankruptcy court treated the motion as one brought under that rule. 4 Debtors then filed an answer to the amended complaint and a motion

for summary judgment on the § 523(a)(2) claims, which the bankruptcy

court granted. El Dorado timely appealed. Although its notice of appeal

references and attaches the bankruptcy court’s final order dismissing the

adversary proceeding, El Dorado challenges only the dismissal of the

§ 523(a)(4) claim.

JURISDICTION

The bankruptcy court had jurisdiction under

and

157(b)(2)(I). We have jurisdiction under

.

ISSUE

Did the bankruptcy court err in dismissing the § 523(a)(4)

nondischargeability claim with prejudice?

STANDARD OF REVIEW

We review de novo the bankruptcy court’s decision to grant a motion

to dismiss under Civil Rule 12(b)(6). Barnes v. Belice (In re Belice),

(9th Cir. BAP 2011). “De novo review requires that we consider a

matter anew, as if no decision had been made previously.” Francis v.

Wallace (In re Francis),

(9th Cir. BAP 2014) (citations

omitted).

DISCUSSION

As noted, only the dismissal of the § 523(a)(4) embezzlement claim is

at issue in this appeal. In that context, El Dorado argues that the

bankruptcy court erred in “overruling” the state court judgment and in

5 disregarding “binding California law” imposing criminal liability upon a

party that sells mortgaged property without permission.

A. The bankruptcy court did not err in disregarding the state court judgment in dismissing the § 523(a)(4) embezzlement claim. This Panel reversed the bankruptcy court’s judgment finding that the

state court judgment was entitled to issue preclusive effect. In re Mack,

, at *8. El Dorado mischaracterizes the Panel’s holding as being

based solely on the bankruptcy court’s failure to consider the public policy

prong of the issue preclusion analysis. We also held that the “actually

litigated” and “necessarily decided” prongs of the analysis were not met.

Id. at *6-8. Importantly, we concluded that the state court could have

entered the default judgment without finding fraud, id. at 7, and thus the

state court judgment could not be given issue preclusive effect with respect

to a § 523(a)(2) claim. Our previous decision is now law of the case, and the

matters we previously decided dispose of El Dorado’s arguments that the

state court default judgment established elements of its § 523(a)(4) claim.

B. The bankruptcy court did not err in granting Debtors’ motion to dismiss the embezzlement claim under § 523(a)(4). 1. Legal standard for motion to dismiss under Civil Rule 12(b)(6) In reviewing the bankruptcy court’s decision on a motion to dismiss,

we apply the same standards to Civil Rule 12(b)(6) motions that all federal

courts are required to apply. In re Belice,

. Under Civil Rule

12(b)(6), a trial court may dismiss a complaint for “failure to state a claim

6 upon which relief can be granted.” To survive a Civil Rule 12(b)(6)

dismissal motion, a complaint must present cognizable legal theories and

sufficient factual allegations to support those theories. See Johnson v.

Riverside Healthcare Sys., LP,

(9th Cir. 2008). A complaint

must contain more than “an unadorned, the-defendant-unlawfully-

harmed-me accusation. A pleading that offers labels and conclusions or a

formulaic recitation of the elements of a cause of action will not do.”

Ashcroft v. Iqbal,

(2009) (cleaned up).

2. Allegations

With respect to the embezzlement claim, the amended complaint

alleged, “Plaintiff is informed and believes that . . . the defendants

embezzled approximately $88,439 in mortgaged inventory . . . . They have

never accounted for this missing inventory.” It further alleged that because

the inventory value exceeded $950 and was sold without the Unruhs’

permission, the alleged embezzlement was a felony under California Penal

Code § 538. Finally, the complaint alleged that Debtors’ promise to

maintain $150,000 of inventory was false when made but even if it were

true, they did not follow through on that promise.

3. El Dorado failed to state an embezzlement claim because the inventory at issue belonged to Archery. Section 523(a)(4) prohibits discharge of a debt for “for fraud or

defalcation while acting in a fiduciary capacity, embezzlement, or larceny.”

Embezzlement in the context of nondischargeability has been defined as

7 “the fraudulent appropriation of property by a person to whom such

property has been entrusted or into whose hands it has lawfully come.”

Transamerica Com. Fin. Corp. v. Littleton (In re Littleton),

(9th Cir. 1991) (quoting Moore v. United States,

(1885)). To

prove an embezzlement claim, the plaintiff must establish three elements:

“(1) property rightfully in the possession of a nonowner; (2) nonowner's

appropriation of the property to a use other than which it was entrusted;

and (3) circumstances indicating fraud.”

(cleaned up). The Supreme

Court has clarified that the final element requires a showing of wrongful

intent. Bullock v. BankChampaign, N.A.,

(2013).

El Dorado did not include in its excerpts of record the transcript of

the hearing at which the bankruptcy court announced its ruling dismissing

the embezzlement claim, so we do not know the bankruptcy court’s

reasoning. But “[w]e may affirm on any basis supported by the record.”

Caviata Attached Homes, LLC v. U.S. Bank, Nat’l Ass’n (In re Caviata Attached

Homes, LLC),

(9th Cir. BAP 2012) (citation omitted).

A plaintiff asserting an embezzlement claim under § 523(a)(4) must

establish that the property at issue belonged to the plaintiff. Zamani v.

Razavi (In re Razavi),

(Bankr. N.D. Cal. 2015); Hulsing

Hotels Tenn., Inc. v. Steffner (In re Steffner),

(Bankr. E.D.

Tenn. 2012); see also Cody Farms, Inc. v. Deerman (In re Deerman),

(Bankr. D.N.M. 2012) (citing cases). Here, the inventory belonged

to Archery. Although the Unruhs held a security interest in the inventory,

8 such an interest is insufficient to support an embezzlement claim under

§ 523(a)(4). Mut. Mgmt. Servs., Inc. v. Fairgrieves (In re Fairgrieves),

(Bankr. N.D. Ill. 2010).

Debtors argued in the bankruptcy court that the Unruhs lacked

standing to assert an embezzlement claim under § 523(a)(4), relying on

Zacharakis v. Melo (In re Melo),

(Bankr. D. Mass.

2016). While some courts have characterized the issue as a lack of standing,

and here the Unruhs arguably lacked standing to assert a § 523(a)(4)

embezzlement claim, they (and their assignee) had standing to be heard in

the bankruptcy court regarding the disposition of their claim and for a

determination of dischargeability generally. Regardless of whether the

issue is characterized as an inability to plead an essential element of a cause

of action or lack of standing, the bankruptcy court did not err in dismissing

the embezzlement claim with prejudice.

On appeal, El Dorado’s only attempt to address this issue is to assert

in its reply brief that its amended complaint alleged injury to the plaintiff.

It did not. Nor does El Dorado address the elements required to prove

embezzlement under § 523(a)(4). It argues that the bankruptcy court erred

in dismissing the claim despite El Dorado “having proved the facts

necessary to establish embezzlement, and thus exception to discharge, as a

matter of California law.” This argument, and additional assertions in El

Dorado’s brief, assume that the state court judgment was entitled to issue

preclusive effect. As discussed above, that assumption is incorrect.

9 El Dorado goes on to assert that under California law it is the crime

of larceny to sell mortgaged goods without the permission of the

mortgagee, citing California Penal Code § 538.3 But our focus is on the

elements required to prove nondischargeability under federal bankruptcy

law; the California criminal statute is irrelevant. El Dorado also argues that

wrongful disposition of collateral can be nondischargeable as a conversion

under § 523(a)(6), citing American Family Financial Services, Inc. v. Johnson (In

re Johnson),

(Bankr. D. Minn. 1994). But El Dorado’s

attempt to plead a cause of action under § 523(a)(6) was rejected by the

bankruptcy court and not challenged on appeal; this argument is also

irrelevant to the dismissal of the embezzlement claim.

CONCLUSION

The bankruptcy court did not err in dismissing the § 523(a)(4)

embezzlement claim with prejudice. We therefore AFFIRM.

3 That statute provides, in relevant part: Every person, who, after mortgaging any of the property permitted to be mortgaged by the provisions of Sections 9102 and 9109 of the Commercial Code, excepting locomotives, engines, rolling stock of a railroad, steamboat machinery in actual use, and vessels, during the existence of the mortgage, with intent to defraud the mortgagee, his or her representative or assigns, takes, drives, carries away, or otherwise removes or permits the taking, driving, or carrying away, or other removal of the mortgaged property, or any part thereof, from the county where it was situated when mortgaged, without the written consent of the mortgagee, or who sells, transfers, slaughters, destroys, or in any manner further encumbers the mortgaged property, or any part thereof, or causes it to be sold, transferred, slaughtered, destroyed, or further encumbered, is guilty of theft, and is punishable accordingly. . . . 10